Essay on Precedent, Standing Bear, Partial-Birth Abortion and Word Games - A Response to Steve Grasz and other Conservatives, An
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Authors
Kopf, Richard G.
Issue Date
2002
Volume
35
Issue
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
FIRST PARAGRAPH(S)|Like Elmer Dundy, the author of United States ex rel. Standing Bear v. Crook, I have been privileged to serve as a federal judge in Nebraska. Unremarkably, or so I thought until recently, we try as best we can to adhere to the commonly accepted norm that lower court judges must follow and fairly apply analogous opinions of higher court judges. This doctrine, called "precedent" or "stare decisis," requires the lower court judge to apply the higher court judge's prior opinion in a similar case, even if the lower court judge passionately disagrees with the result or the reasoning. In academic circles, this notion is called "vertical" precedent.|In this essay, I explore vertical precedent from the viewpoint of a trial judge who must actually decide a difficult case like one involving partial-birth abortion. In so doing, I cast a critical eye on a law review article written by Steven Grasz which refers to the Standing Bear opinion as a metaphor for the proper use of precedent in the context of abortion litigation. I conclude that Mr. Grasz proposes a strain of judicial activism that he ought to decry...
Description
Citation
35 Creighton L. Rev. 11 (2001-2002)
Publisher
Creighton University School of Law